CHARLESTON, W.Va. — Legislative leaders are questioning how the state Department of Environmental Protection is moving forward with the implementation of registration and inspection requirements within the Aboveground Storage Tank Act.
“They’ve decided to go with an interpretive rule which I’m a bit troubled by only because it usurps the power of the Legislature and it lets administrative agencies or bureaucrats actually say, ‘This is what the Legislature meant in passing their law and this is how we’re going to enforce it,'” said Senate President Jeff Kessler (D-Marshall, 2)
On Tuesday, the DEP issued a proposed interpretive rule that creates three different classifications for aboveground storage tanks with varying initial inspection requirements at each level based on a “risk assessment approach.”
All tanks still must be registered by Oct. 1. Level I, Level II and Level III classifications will be assigned after registration. What’s different is basically who is required to inspect those tanks before Jan. 1 based on the threats their contents pose to public health. Certified inspections will be required of Level I tanks with the DEP having leeway to determine potential dangers.
Angie Rosser, executive director of the West Virginia Rivers Coalition, said the interpretive rule was a “compromise.”
“I think Freedom Industries just woke us all up to the connections between environmental protection and our public health, our economic security, our quality of life and it’s almost, in my view, been a reassessment of our values,” Rosser said.
On Wednesday’s MetroNews “Talkline,” Kessler said he thinks lawmakers should have taken up the different classifications and inspection guidelines — what he called “a bridge” to the permanent regulations — in a Special Session. Without that kind of statutory action, he said the DEP should have filed an emergency rule.
If there is a legal challenge, “This interpretive rule will not hold water as any type of legal authority to resist that challenge as an emergency rule would have,” said House Speaker Tim Miley (D-Harrison, 48) who also questioned the DEP’s methods.
In general, Miley said he supports the interpretive rule — which can be read here — as a way to protect drinking water while being more fair to certain industries with tanks that do not threaten that drinking water. Enforcement, though, he said, is key.
“I think it’s going to be a good step in setting forth laws which people and entities have to follow and you hope that they’re all law-abiding entities and people,” Miley said. “But the reality is, it doesn’t matter what we pass as laws to be followed. If they’re not followed, they’re not going to do any good.”
Phil Reale, with the West Virginia Independent Oil and Gas Association, is remaining cautious about the legislation. “I think, conceptually, what has been advanced has promise, but I think what is described in the written word still poses some significant issues here,” Reale said.
Last month, both Kessler and Miley sent a letter to Gov. Earl Ray Tomblin asking that a Special Session be called for September interim meetings, which wrapped up Wednesday, to push back the inspection deadline in the Aboveground Storage Tank Act for as long as a year.
At that time, they said the deadline was “unattainable.” “I think the legislation works. I think it’s good legislation. The timeframes were just a bit compressed,” Kessler said Wednesday.
The DEP’s proposed interpretive rule, which will expire next July, is now out for a 30-day comment period. A public hearing is scheduled for Oct. 9 at the DEP headquarters in Charleston.
The Aboveground Storage Tank Act was written and passed as a response to the Jan. 9 Freedom Industries chemical spill on the Elk River to better protect West Virginia’s public water supplies. The spill contaminated tap water for 300,000 West Virginians in nine West Virginia counties.
“There’s no guarantee that we’ll ever prevent something like that from happening again, but it is some reassurance,” Rosser said.